THIS OPINION IS SUBJECT TO
EDITORIAL
CORRECTION BEFORE FINAL PUBLICATION.

Judge CRAWFORD
delivered the opinion of the Court.

Before
a general
court-martial on January 4-7, 2000, and contrary to his pleas,
Appellant was
convicted of conspiring to distribute cocaine, twice distributing
cocaine, and
using cocaine, in violation of Articles 81 and 112a, Uniform Code of
Military
Justice (UCMJ), 10 U.S.C. §§ 881 and 912a (2000).The offenses all occurred at Fort
Lewis, Washington, in
July and
August 1999.On September 27, 2000,
prior to authentication of the record of trial, and prior to the
convening
authority’s action, Appellant requested a post-trial session under
Article 39(a),
UCMJ, 10 U.S.C. § 839(a) (2000), seeking inquiry into alleged
witness
misconduct, or, alternatively, a mistrial or a new trial.Lieutenant Colonel (LTC) Smith heard the
evidence at the post-trial session and denied the motion.The military judge who presided at trial (LTC
Higgins) had been reassigned.After this
hearing, on May 3, 2001,
the
convening authority approved the sentence of a bad-conduct discharge,
three
years’ confinement, total forfeitures, and reduction to the lowest
enlisted
grade.

On October 17, 2002, Appellant filed a
joint “Brief on
Behalf of Appellant and Petition for New Trial” with the Army Court of
Criminal
Appeals.The joint brief was rejected on
procedural grounds and Appellant did not file a separate petition for
new trial
until August 20, 2003.On September
23, 2003, the Court of Criminal Appeals affirmed the
findings and
sentence and denied Appellant’s petition for new trial in a short-form
opinion.United States v. Meghdadi, ARMY 20000029 (A. Ct. Crim. App.
Sept. 23,
2003).We granted review of the
first issue and specified issues two and three:

I.WHETHER THE ARMY COURT OF CRIMINAL
APPEALS
ERRED WHEN IT DENIED APPELLANT’S REQUEST FOR A NEW TRIAL BASED ON NEWLY
DISCOVERED EVIDENCE AND FRAUDON
THE TRIAL COURT?

II.WHETHER APPELLANT’S FAILURE TO FILE THE
PETITION FOR NEW TRIAL WITHIN THE TWO-YEAR PERIOD ESTABLISHED BY
ARTICLE 73
DEPRIVED THE ARMY COURT OF CRIMINAL APPEALS OF JURISDICTION TO CONSIDER
THE
PETITION?

III.WHETHER THE MILITARY JUDGE ERRED WHEN HE DENIED
APPELLANT’S MOTION FOR A POST-TRIAL ARTICLE 39(A) SESSION TO CONSIDER
WHETHER
APPELLANT SHOULD BE GRANTED A NEW TRIAL IN LIGHT OF CLAIMS OF NEWLY
DISCOVERED
EVIDENCE AND FRAUDON
THE COURT?

For the reasons set forth below, we conclude that the military
judge
erred in denying Appellant’s motion for a post-trial session pursuant
to
Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2000), to consider
whether a new trial
should be granted.Accordingly, we need
not reach Issues I and II.

FACTS

Appellant’s
convictions for conspiring to distribute cocaine and twice distributing
cocaine
rested almost entirely on the testimony of Investigator Pereira
(Pereira) of
the FortLewis,
Washington, Criminal
Investigation Command (CID), and Specialist Polanco (Polanco), an
informant for
the CID, who was recruited by Pereira
shortly after Pereira
arrested Polanco for drug offenses.At
Appellant’s trial, Pereira
testified that in July 1999 he gave Polanco money to buy cocaine from
Appellant.After Appellant showed
Polanco a baggie containing a white powder, they went into a bathroom
to avoid
detection by casual observers.Polanco
emerged without the money and with a baggie containing cocaine.Polanco corroborated Pereira’s
testimony.Additionally, Pereira
was the only witness to the conspiracy and the August 1999 off-post
cocaine
distribution at the home of another soldier.Appellant’s fingerprints were not found on the drug baggie
allegedly
purchased from him by Polanco, and the drug baggie allegedly purchased
by Pereira
was not tested for prints.In order for
the members to have convicted Appellant of the crimes with which he was
charged, they must have believed Polanco and, especially, Pereira.Pereira’s
credibility was key even when questioned by
the
members.The central theme of the
defense was that Pereira
and
Polanco had lied.Specifically, the
defense theory was that:(1) Pereira
wanted to “make” numerous drug cases in order to advance his career;
(2)
Pereira had procured Polanco’s assistance by promising Polanco
assistance in
his case, including that he would not go to jail if he helped CID; and
(3)
Polanco had “set up” Appellant (and others, by implication) so that CID
agents
would keep their promises.The findings
establish that the members did not find the defense theory sufficiently
compelling to dissuade them from determining, beyond a reasonable
doubt, that
Appellant was guilty.

About
three months
after Appellant’s trial, consistent with his pleas made pursuant to a
pretrial
agreement, Polanco was convicted of two specifications of wrongfully
distributing cocaine and one specification of wrongfully selling Prozac.He was sentenced to a bad-conduct discharge,
reduction to E-1, and a fine of $500.His sentence did not include confinement.In
that case, Polanco’s defense counsel asked
the military judge to find that he had been granted immunity by the
actions and
promises of Pereira and other CID operatives.During the hearing on that motion, the defense introduced a
surreptitiously
recorded audiotape of a conversation, purportedly occurring between
Polanco and
Pereira, after Polanco had been terminated as a CID confidential source.Only Polanco and his defense counsel knew of
the recording prior to Polanco’s trial.

After
Appellant’s
defense counsel had obtained a copy of Polanco’s record of trial, he
made a
“Motion For Post-Trial 39(a) Session,” for
the
“purpose of examining an allegation of misconduct by . . . Investigator
(INV)
Luis Pereira.”This motion requested
several remedies, including “a new trial, based on newly discovered
evidence
and fraud on the court,” and advanced a detailed factual exposition
with
supporting exhibits.Appellant claimed
that Pereira lied at Appellant’s trial by testifying that:(1) he had not promised Polanco that Polanco
would not go to jail if he helped CID; (2) he had not told Polanco that
CID
would assist him with his case if Polanco went to work for CID; and (3)
he had
not met with Polanco after Polanco had been terminated as a “registered
source.”The audiotape contains passages
pertinent, in varying degrees, to all three claims.Appellant contends that had the tape been
played at his trial, Pereira’s credibility would have been so damaged
that,
when coupled with the inference that Polanco was implicating as many
people as
possible in order to get CID’s help in reducing his own charges, the
results of
Appellant’s trial would have been different.

During
Appellant’s
trial, there was little evidence to corroborate Pereira’s and Polanco’s
testimony implicating Appellant, and Pereira
had made arguably evasive replies to several questions on
cross-examination.Further, Pereira
had admitted that he had not searched Polanco before the “controlled
buy”
Polanco made from Appellant, arguably supporting Appellant’s suggestion
that
Polanco may have brought the “purchased” drugs with him.In acknowledging this failure, Pereira
explained that because both Polanco and Appellant were present together
when he
arrived, such a search would have been impracticable.Although others were allegedly present at the
second sale, only Pereira
testified
to the details of that transaction, which also yielded the only
evidence of the
conspiracy of which Appellant was convicted.Although Pereira
testified
that he was wearing a “wire” during this second transaction, no
recording was
made due to an equipment malfunction.Pereira
testified that Appellant understood the important details of the
conversation
conducted in Spanish and English, notwithstanding that Appellant is
Iranian
and, according to the testimony of his sister and a coworker, speaks no
Spanish.

As
noted, LTC
Smith had not observed either Polanco or Pereira testify at trial.After considering the written submissions of
the parties and reading a translated, unauthenticated transcript of the
audiotape, LTC Smith denied the defense motion for a post-trial Article
39(a)
session, for a mistrial, for a new trial, and to set aside two of the
findings
of guilty.

DISCUSSION

We
agree with the Government’s assertion that “[m]ilitary service courts
use their
fact-finding powers to examine and contrast the testimony at trial with
other
post-trial submissions on motions for new trial.”Appellee’s
Final Brief at 9 (citing United
States v. Brooks, 49 M.J. 64, 68 (C.A.A.F. 1998); United States
v. Bacon,
12 M.J. 489, 492 (C.M.A. 1982)).Because
the Court of Criminal Appeals elected summary affirmation, we lack the
benefit
of that court’s fact-finding and rationale as to whether the military
judge
properly denied Appellant’s request for a post-trial Article 39(a)
session.Within the constraints of
Article 67, UCMJ, 10 U.S.C. § 867 (2000), and consistent with our
precedent, United
States v. Siroky, 44 M.J. 394, 399 (C.A.A.F. 1996), we will pierce
the
intermediate level of appellate review and examine the military judge’s
ruling
directly.

Rule
for Courts-Martial (R.C.M.) 905(h) addresses written motions in general
and
provides, in part:“[u]pon request,
either party is entitled to an Article 39(a) session to present oral
argument
or have an evidentiary hearing concerning the disposition of written
motions.”R.C.M. 1102(b)(2)
and (d), specifically addressing post-trial Article
39(a) sessions, contain no similar language.

In
United States v. Scaff, 29 M.J. 60
(C.M.A. 1989), we removed any substantive distinction between a
military
judge’s authority to consider post-trial issues under R.C.M. 1102(b)(2)
and R.C.M. 1210(f):

If evidence is
discovered after trial which would constitute grounds for a new trial
under RCM
1210(f), this might be considered a "matter which arises after
trial
and which substantially affects the legal sufficiency of any findings
of guilty
or the sentence" within the meaning of RCM 1102(b)(2).
However, even if the drafters of the Manual did not intend such an
interpretation of this Rule, we still are persuaded that Article 39(a)
of the
Code empowers the military judge to convene a post-trial session to
consider
newly discovered evidence and to take whatever remedial action is
appropriate.

29 M.J. at
65-66 (footnote omitted).

We
have long recognized that petitions for a new trial “are generally
disfavored,” United States v. Williams,
37 M.J.
352, 356(C.M.A.
1993), and that “granting
a petition for a new trial in the military rests ‘within the [sound]
discretion
of the authority considering . . . [that] petition.’” United States
v. Bacon,
12 M.J. 489, 492 (C.M.A. 1982) (quoting United States v. Lebron,
46
C.M.R. 1062, 1066 (A.F.C.M.R. 1973)).“This Court has opined that requests for a new trial, and thus
rehearings and reopenings of trial proceedings, are generally
disfavored.Relief is granted only if a
manifest
injustice would result absent a new trial, rehearing, or reopening
based on
profered newly discovered evidence.”Williams,
37 M.J. at 356.

Although we have not
directly
addressed the standard to be applied in examining a military judge’s
denial of
a request for a post-trial Article 39(a) session, we have held that
“[w]hen an
appellant requests the convening authority to order a post-trial
Article 39(a)
session, it is a matter for the convening authority's sound discretion
whether
to grant the request,” United States v. Ruiz, 49 M.J. 340, 348
(C.A.A.F.
1998), and that “[w]e review a military judge’s ruling on a petition
for a new
trial for abuse of that discretion.”United
States v.
Humphreys,
57 M.J. 83, 96 (C.A.A.F. 2002).

In
denying a petition for a new trial, a military judge abuses his
discretion “if
the findings of fact upon which he predicates his ruling are not
supported by
evidence of record; if incorrect legal principles were used by him in
deciding
this motion; or if his application of the correct legal principles to
the facts
of a particular case is clearly unreasonable.”United
States
v. Williams, 37 M.J. 352, 356 (C.M.A. 1993). While
this standard is not facially
applicable to the military judge’s denial of Appellant’s request for an
Article
39(a) session, the fact that the request was made in the context of a
motion
for new trial compels our consideration of this analytical framework in
assessing the military judge’s factual and legal conclusions.

In
denying Appellant’s motion, the military judge misapprehended the
purpose of
the Article 39(a) session, made factual findings that are not supported
by the
record, applied an erroneous legal standard, misperceived the
evidentiary value
of the audio tape, and made no record of any weighing of the new
evidence
against the evidence at trial, either on the merits or in sentencing.Further, on an issue related entirely to
witness credibility, the military judge declined the opportunity
personally to
hear the testimony of witnesses and, in the process, denied counsel the
opportunity to develop that testimony in an adversarial forum.Viewing these circumstances in the aggregate,
we conclude that the military judge’s reasons and ruling were clearly
untenable
and that they constitute a prejudicial abuse of discretion.

A.Purpose of the Requested Post-Trial
Session Under Article 39(a), UCMJ

After making
factual findings, the military judge denied the relief requested by
Appellant:

A
post-trial
Article 39(a) session to examine defense counsel’s allegations of
misconduct by
INV Periera is not warranted.Other
mechanisms, such as a commander’s inquiry pursuant to R.C.M. 303 or an
[Army
Regulation] 15-6 investigation, are the proper means of conducting any
such
inquiry.

Despite
Appellant’s
citation to R.C.M. 1102 and 1210 in his motion, the military judge
failed to
recognize that the primary purpose of the requested inquiry into
witness
misconduct was to examine Appellant’s request for a mistrial or new
trial,
rather than to establish a basis for correction or discipline of the
witnesses
themselves.This failure was compounded
by his erroneous view of both the facts and the rules of evidence.

B.The Military Judge’s Findings

Appellant
disagrees with three aspects of the military judge’s ruling:his conclusion that the defense could have
discovered the tape through due diligence; his conclusion that the
voice
attributed to Pereira on Polanco’s tape did not tell Polanco that
Polanco’s
work for CID would help Polanco’s case; and his conclusion that the
remarks of
Pereira on the tape could not be construed as an admission that Pereira
had
promised Polanco that he would not go to jail if he helped CID.For the reasons discussed below, we agree with
Appellant.

First,
the
evidence does not support the military judge’s finding that Appellant’s
defense
counsel did not exercise due diligence in ascertaining the existence of
the
audiotape.The tape was made covertly by
Polanco and delivered to Polanco’s defense counsel, who secreted the
tape until
Polanco’s trial so as to provide maximum effectiveness in impeaching Pereira
during those proceedings.At Polanco’s
trial, Government counsel were surprised by
the
existence of the tape.As noted in the
defense request for reconsideration, the issue of diligence was not
even
contested by the Government in its opposition to Appellant’s post-trial
motion.In
view of the military judge’s lack of familiarity with the witnesses,
his
declination to observe their demeanor, and the Government’s apparent
concession
of the issue, there is little but conjecture to support the military
judge’s
finding that “merely asking Polanco if he had any corroborating
evidence
concerning his allegations against Periera would have led to the
discovery of
the audiotape prior to Meghdadi’s court-martial.”

Second,
the voice
attributed to Pereira in
the
transcript of the audiotape says to Polanco:“You contributed for the CID to get so many drug dealers on the
installation.If everybody see whatever
you have done good before the incident, all this will help you.”Nonetheless, the military judge found that
“[n]owhere . . . does Pereira
promise Polanco . . . that helping CID will help Polanco’s case.”This finding appears hypertechnical.The question is not whether the military
judge believed a promise had been made, but whether a rational trier of
fact
could have found the newly discovered evidence of such a promise
“sufficiently
believable to make a more favorable result probable.”Brooks, 49 M.J. at
69.Regardless of whether the
military judge did more than merely rely on the absence of the word
“promise”
from Pereira’s statement, he erred by concluding that a rational trier
of fact,
after hearing this evidence tested in an adversarial setting, could not
have
found that such a promise had been made.

As
to whether Pereira
had promised Polanco that Polanco would not go to jail, the military
judge
again applied an incomplete, if not incorrect, standard.Finding that the audiotape did not expressly
contain such a promise, the military judge failed to consider whether,
together
with Polanco’s testimony, Pereira’s in-court denials, and other
potential
inconsistencies by Pereira, the audiotape (a portion of the transcript
of which
is quoted below) could convince a rational trier of fact that such a
promise
had indeed been made:

POLANCO:
I’m
going to do everything right, and my woman is going to do everything
okay.I don’t want my mother to die.

PEREIRA:
The truth is, I’m going to back up off my
word.

[Tape
inaudible]

PEREIRA:You contributed for the CID to get so many
drug dealers on the installation.If
everybody see whatever you have done good before the incident, all this
will
help you.

POLANCO:I hope so.You always told me that I would not go to jail.

PEREIRA:Like I told the woman, you can say whatever
you want, but you’re not going to f*** with me.If you come and say all those things, who do you think they’re
going to
believe, you or me?You mentioned about
your mother, and I’m worried because I have my mother also, and I don’t
want
anything to happen, but everything is going to get fine.

POLANCO:If none of you go and testify on my behalf,
even the General is going to find out about me.I am begging you for my mother.

PEREIRA:I will do the impossible to show or talk on
your behalf based upon whatever you have done for me.

Although
not
binding, the ruling of LTC Higgins, the military judge in the
courts-martial of
both Polanco and Appellant, who twice heard Polanco and Pereira testify
and
heard the inflection and tone of voice used on the tape itself (noting
that the
tape used a combination of Spanish and English), is informative.LTC Smith summarized LTC Higgins’s denial of
Polanco’s motion for a finding of immunity by saying “[t]he military
judge did
not find that INV Pereira and other CID agents promised Polanco he
would not go
to jail.”However, what LTC Higgins
actually said, in referring to Pereira and other CID Drug Suppression
Team
members, was:

[t]hey made promises and secured the
cooperation of a registered source who performed on his end of the
bargain and
they immediately began back pedaling when they realized that the
assures [sic]
they had given might be beyond their ability to comply with.They further minimized their involvement in
making these assurances in their testimony before the court, and that
is to put
it charitably.

While
LTC
Higgins’s determination of credibility is not dispositive, it certainly
serves
to underscore the necessity for a meaningful fact-finding inquiry and a
detailed application of correct legal standards.

C.Evidentiary Value of the Audiotape

The
military judge
erroneously concluded that the audiotape would not be admissible.The military judge assumed that the taped
conversation would be offered only under Military Rule of Evidence
(M.R.E.)
608(b) and would be inadmissible as “extrinsic evidence.”This conclusion inexplicably excludes both
M.R.E. 608(c) and 613, neither of which requires the prior statement to
have
been probative of truthfulness and neither of which prohibits
introduction of
qualifying extrinsic evidence under these facts.

M.R.E.
608(c)
permits introduction of evidence, extrinsic or otherwise, tending to
establish
bias, prejudice, or motive to misrepresent on the part of a witness:

Bias,
prejudice, or any motive to
misrepresent may be shown to impeach the witness either by examination
of the
witness or by evidence otherwise adduced.

The tape recording,
taken together
with other evidence in this case, is relevant to a fact-finder’s
determination
of whether Pereira and Polanco had motives to misrepresent:Pereira,
for professional gain and to prevent discovery of his arguably
unauthorized
investigational techniques; and Polanco, to stay out of jail and secure
CID’s
help with his case.

As
to M.R.E. 613(b), the military judge concluded that “defense counsel
would have
been stuck with the answers INV Periera provided at Meghdadi’s
court-martial,
the very situation that actually occurred.”This conclusion would be correct if Pereira and Polanco admitted
making
their prior statements.If they denied
making the statements, or equivocated, M.R.E. 613 permits the extrinsic
evidence of these statements.See,
e.g., United States v. Ureta, 44 M.J. 290, 298 (C.A.A.F.
1996);United
States v. Button, 34 M.J. 139, 140 (C.M.A. 1992).We hold that Appellant has firmly established
the potential impeachment value of the newly discovered statements and
that
their value was not considered by the military judge.

D.Consideration of R.C.M. 1210(f)(3)

The
military judge’s ruling fails adequately to address Appellant’s claim
that the
fraud on the court allegedly perpetrated by Pereira
“had a substantial contributing effect on. . . the sentence adjudged.”R.C.M. 1210(f)(3).By denying a post-trial session at which Pereira
could be confronted with evidence of the audiotape by Appellant’s
counsel, and
by instead relying on a translated, unauthenticated transcript, the
military
judge denied himself the opportunity for meaningful assessment of
whether
Peirera’s trial testimony comprised perjury and, if so, whether the
effect of
the perjury substantially contributed to the sentence.SeeUnited States v. Hester, 26
M.J. 299, 299 (C.M.A. 1988)(“[W]e conclude
that
perjured testimony from the two witnesses . . . . constituted
a fraud on the court . . . .”); United States v. Bourchier, 5
C.M.A. 15,
17 C.M.R. 15 (1954)(accused did not establish “proved perjury”).This failure is particularly salient in view
of Appellant’s complaint that he was sentenced far more harshly than
Polanco;
the fact that Pereira’s
credibility
was questioned during his testimony for the Government, the defense,
and the
court; and the fact that Pereira
was the Government’s only sentencing
witness.Under such circumstances,
evidence adverse to
Pereira’s credibility
deserved to
be weighed against the evidence at trial before the military judge
concluded, sub
silentio, that the “fraud” did not have “a substantial contributing
effect
on . . . the sentence adjudged.”

CONCLUSION

Called
upon to examine a close question of credibility and presented with an
audiotaped conversation, largely in Spanish, filled with innuendo,
implication,
and conversational nuance, a military judge who had not presided at
either
trial declined even to hear the witnesses testify, much less allow
counsel to
develop that testimony.

The
military judge
would have done well to follow the guidance of the military judge in Scaff,
who noted:

The
purpose of my
granting [the] request for a post-trial 39(a) session was to prevent a
possible
miscarriage of justice by providing for the securing of apparently
extremely
significant evidence at the earliest possible time.This session, I felt, would not only preserve
the evidence, while still relatively fresh in the witness’ memory,
compared
with the state of her memory at some future . . . hearing [pursuant to United
States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 41 (1967),] ordered by an
Appellate Court, but would, in all likelihood, result in less cost to
the
Government.

29 M.J. at 62
(citation omitted).

We
express no
opinion on the question of whether Appellant is entitled to a new
trial;
however, we are satisfied that, given the evidentiary posture in which
the
request was presented, the failure to afford Appellant a forum in which
to make
his case was error that materially prejudiced Appellant’s substantial trial rights.

The
decision of
the Army Court of Criminal Appeals is reversed and the record of trial
is
returned to The Judge Advocate General for action not inconsistent with
this
opinion, to include a post-trial Article 39(a) session to consider
Appellant’s
request for a new trial.